Tag Archive | "ICTR"

On March 14th, the International Criminal Court (ICC) delivered it first judgment, finding Thomas Lubanga guilty of three child soldier war crimes offenses. The verdict is a welcome victory in the fight against impunity and it is some measure of justice for the 60,000 persons killed in the Ituri province in Eastern Congo. But the judgment highlighted the ICC’s painstakingly slow pace to date – the ICC has been in existence for ten years and so far they have indicted 15 persons and achieved one conviction. And it should be noted this is not a final conviction, but only a trial verdict. To be fair, three other accused are in the midst of trials.

Thomas Lubanga at the ICC

Just how much have these 15 indictments and lone conviction cost the ICCs signatories? The cumulative total of the ICC’s budgets over the initial decade is $900 million. By way of comparison, the International Criminal Tribunal for the Former Yugoslavia (ICTY) spent $695 million in its first ten years, and the International Criminal Tribunal for Rwanda (ICTR) spent about a $1 billion. So at a glance the ICC is not out of line with its brethren institutions.

However, the ICTY and ICTR both indicted far more suspects for that money. The ICTY indicted 161 persons, 1 while the ICTR indicted 91 persons.2 I didn’t have time to research every indictment, but my memory was that most of those indictments had been issued by the ten year mark.

Let’s break those numbers down a bit more. Based on the numbers above, the cost per suspect indicted at the ICTY, regardless of the outcome of the case, was $4.3 million, it was $11 million at the ICTR and $60 million at the ICC.

I am not going to address the overall cost of international tribunals in this blog. Suffice it to say that they are too expensive and too inefficient in my view. What I would like to talk about here is the ICC relative costs to the ICTY and ICTR ad hoc tribunals.

While we can expect that the ICC will approach the cost structures of the ad hocsover time, the ICC will never be able to match their operational costs (particularly the lower ICTY costs) for several reasons.

First, the ICTY and ICTR were both mandated by Security Council resolutions, and thus the major political and legal questions about their right to adjudicate matters was resolved before their work began. At their inception, they had the luxury of focusing their energies on criminal investigations rather than jurisdictional challenges. The ICC is a wholly different animal. It must establish its right to exercise its jurisdiction in each situation it chooses to “officially” investigate, and must walk a diplomatic tightrope along the way. (The only exception to that rule is when the Security Council refers cases to it, as it did with Sudan and Libya.)

Second, the ICTY and ICTR both had clear and specific mandates — to prosecute those most responsible for offenses in defined conflicts. The ICC, on the other hand, has a global mandate with an obligation to consider crimes committed in any of its 139 signatory territories plus any others referred to it by the Security Council. The ICC gets thousands of unofficial communiques each year. It must conduct a cursory review of these communiques regardless of whether it decides to launch an official investigation.

Third, the ICTY and ICTR had one-time ramp-up costs and learning curves. The ICC goes through this ramp-up process for each official investigation. The ICC must establish information and logistical beachheads in each situation, creating an investigational infrastructure for each official investigation. Key witnesses have to be located, relationships formed and nurtured and local politics mastered. Even small details such as safe hotels for accommodation have to be sorted out.

Fourth, the ICC’s broad mandate brings with it an immense problem of language. The two ad hoc tribunals had to contend with difficult regional languages – Kinyarwandan in Rwanda and several Balkan languages in Yugoslavia. The ICC is obligated to function in all of the languages relevant to the conflicts it investigates: there are 200 languages are spoken in the Congo, 72 in the Central Africa Republic, 45 in Uganda, 142 for Sudan, 79 in The Ivory Coast and 69 in Kenya. The ICC could breathe easy with Libya where only 9 languages are spoken. Of course, many people in the Congo speak a lingua franca, Swahili or Lingala. But many witnesses have stronger language capabilities in their local tongues.

We have given the ICC a complicated mandate to achieve and it is no surprise that it is taking it a while to hit its stride.

The ICTY has concluded proceedings in 126 cases which includes 64 convictions. 17 cases are on appeal. ↩

he ICTR has concluded proceedings in 78 which includes 42 convictions. 18 cases are on appeal. ↩

Last Wednesday Judge Meron at the Rwanda International Criminal Tribunal lowered the sentence of the leader of Rwanda’s genocide. Here is a link to an article on the decision.

Colonel Theoneste Bagosora was alleged to be the person who made the decision to commit genocide against the Tutsis and set about planning and preparing for the massacres of 800,000 Tutsi men, women and children. At trial, the court convicted him of genocide, extermination and a host of other charges, and sentenced him to life imprisonment – the maximum sentence under current Tribunal practice.

Last Wednesday, the Appeals Chamber reduced this sentence to 35 years. The rationale was based on Chamber reversing some of the counts, even though the main convictions remained intact.

This sentence is the latest in a long line that demonstrate the flawed sentencing scheme at the international tribunal that produces ridiculous and insulting sentences. Tribunals will not issue consecutive sentences for convictions, but rather aggregate them into a single concurrent sentence of life imprisonment no matter how many counts in the indictment nor how many victims were involved. By contrast, the recent domestic prosecution in Guatamala of the Dos Erres massacres resulted in sentences of 12,000 years for a massacre involving 200 deaths – 60 years per victim aggregated consecutively.

Had the original sentence been based on sentences issued for each of the counts, there would be a good chance that overturning some counts would still leave a life sentence intact. As it stands, Bagosora stands convicted of playing a central role in the genocide but because the evidence was inconclusive regarding his role in a few of charged counts, he is sentenced to only 35 years.

One of the biggest criticisms of the WWII Nuremberg Tribunal was that it was victors justice: the statute only authorized prosecution of crimes committed by the Axis. In addition, both the prosecutors and judges were comprised of nationals from the victorious powers: American, British, French and Soviet.

In subsequent tribunals, international justice has sought to avoid the appearance of victor’s justice with different approaches. Some tribunals have sought to seeking a geographic balance in the prosecution team and on the judicial panels. Other tribunals have excluded participation by judges from the states involved in the conflict. Some tribunals have a policy to prosecute perpetrators of mass crimes from all of the major belligerent forces.

The Nuremberg Tribunal

One fallout from the latter policy of prosecuting all parties to a conflict is the public perception that the crimes associated with the parties are of equivalent gravity. Most legal scholars would agree that the allies committed war crimes against Germany and Japan by using weapons and tactics that either targeted civilian areas or had a disproportionate effect on them. These crimes were never prosecuted, but even so, few scholars would contend that the Allied powers’ crimes during WWII were the equivalent of those of the Nazis. The unqualified decision to commit genocide is not the same as a war crime motivated by an expeditious end of the conflict.

The same can be said of Rwanda. The Rwanda Tribunal has only been able to prosecute the main perpetrators, the Hutu extremists who planned and executed the genocide. But many feel that there is substantial evidence of crimes committed by the Tutsi rebel army as it invaded Rwanda that have not been prosecuted. The problem as I see it is that proponents of Tutsi prosecutions frequently argue equivalency of the two crimes. The Tutsi army, the RPF, may well have committed substantial atrocities, and I am a strong advocate of holding perpetrators criminal responsible. International law mandates it in fact. But justice also requires that criminality be fairly apportioned between belligerents. The decision to exterminate a ethnic group is on a different scale than reprisal crimes that occur in the angry aftermath of those crimes.

Tribunals have prosecuted both sides of the conflict in Yugoslavia and Sierra Leone as well. Balanced prosecutions help deliver justice to conflict region by avoiding the appearance of bias. However, it is important to not equate prosecutorial balance with moral equivalency.

A fairly significant development this morning — the International Criminal Tribunal for Rwanda delivered its judgment in the “Government II” case, an important case involving four ministerial level officials. The Trial Chamber convicted Justin Mugenzi and Prosper Mugiraneza of conspiracy to commit genocide and direct and public incitement and sentenced to 30 years. But, in a blow to the Office of the Prosecutor the Trial Chamber acquitted Casimir Bizimungu and Jérôme-Clément Bicamumpaka outright and ordered their immediate release. Here is a summary of the judgment.

The Gov II trial has been notorious for its sluggish pace. The trial began in 2003 and took five years to complete. The Trial Chamber took three years to issue its decision. During that time, a judge, prosecutor and defense counsel assigned to the case all passed away.

The full judgment has not yet been released, but the summary references a number of fair trial issues with the trial.